Graham v. Johnson et al
Filing
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MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 11/13/2013.Mailed notice.(jlj)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IGDALIAH GRAHAM,
Petitioner,
vs.
RANDY PFISTER, Warden,
Respondent.
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11 C 8720
Judge Feinerman
MEMORANDUM OPINION AND ORDER
Petitioner Igdaliah Graham, an Illinois inmate convicted of first-degree murder and
armed robbery, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 6. The
petition challenges only Graham’s sentence for first-degree murder. After the Warden filed a
response, Doc. 11, the court requested supplemental briefing on Graham’s Sixth Amendment
claim, Doc. 14, which the parties filed, Docs. 15, 17. Having reviewed the petition, the response,
the parties’ supplemental briefs, and the state court record, Doc. 12, the court denies the petition
but issues a certificate of appealability on Graham’s Sixth Amendment claim.
Background
The facts of Graham’s crimes are undisputed. In June 1993, Graham participated in a
carjacking in which the driver was shot and killed. The Appellate Court of Illinois, which is the
last state court to consider Graham’s case on the merits, described the pertinent facts as follows:
Defendant does not contest the sufficiency of the evidence to support his
conviction, which arose out of the fatal shooting and armed robbery of a
young man who was sitting in his car talking with his fiancee, Jacqueline
Porter. Briefly stated, the evidence produced at trial revealed that in the early
morning hours of June 11, 1993, Porter and the [murder] victim [a man named
Pitman] were sitting in the victim’s car, which was parked outside of
Eckersall Park on 82nd Street in Chicago. The couple had been talking about
their upcoming marriage and the birth of their child for approximately 30
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minutes when Porter noticed three men walking down the street. Several
minutes later, she saw the same three men walking back down the street in the
opposite direction.
About three to four minutes later, Porter heard a man tapping on the
driver’s side window of the car with a gun and telling the victim to get out of
the car. As the victim was getting out of the car, defendant grabbed Porter
and “slammed” her up against the back passenger-side window. Porter looked
defendant “dead in the face,” told him she did not see his face and then
covered her face with her jacket. She yelled the victim’s name and the victim
said, “[M]an that’s my woman, she’s pregnant.” Defendant asked Porter for
her wallet, told her to lie on the ground and then got in the passenger-side of
the car.
While lying face down on the ground, Porter heard the other offender
ask the victim for the car keys. The victim told him they were in the car and
the offender said, “I told you, don’t move.” Porter then heard a single gunshot
and the car drove away. Porter ran over to the victim, who had blood coming
from his mouth. She carried him to the other side of the street, laid him in the
grass and ran for help. She was eventually able to flag down a police car and
shortly thereafter, an ambulance arrived at the scene. The victim was
transported to the hospital, where he was later pronounced dead. The autopsy
revealed that the victim died from a gunshot wound to the neck.
People v. Graham, No. 1-97-0417, slip op. at 1-3 (Ill. App. Jul. 13, 1998) (reproduced at Doc.
12-1 at 1-3). At trial, Graham did not deny that he had participated in the carjacking and that his
accomplice had murdered the driver; rather, he “testified that he was responsible for stealing the
car and robbing Porter, but not for murdering the victim.” Doc. 12-1 at 4. The jury convicted
Graham of first degree murder on an accountability theory and also of two counts of armed
robbery. Id. at 5.
The state trial court sentenced Graham to concurrent terms of 75 years for the murder and
30 years for each of the armed robberies. Id. at 6. At the time, Illinois law stated in relevant part
that “a sentence of imprisonment … for first degree murder … shall be not less than 20 years and
not more than 60 years.” 730 ILCS 5/5-8-1(a) (1994). Illinois law further stated that a term “not
less than 60 years and not more than 100 years” could be imposed for first degree murder if any
of the aggravating factors listed in 730 ILCS 5/5-5-3.2(b) (1994) “were found to be present.”
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730 ILCS 5/5-8-2(a)(1) (1994). One aggravating factor, which will be called the recidivism
factor, applied where a defendant convicted of first degree murder had previously been convicted
of certain offenses. 730 ILCS 5/5-5-3.2(b)(7) (1994). Another aggravating factor, which will be
called the brutal-or-heinous factor, applied where “the offense was accompanied by
exceptionally brutal or heinous behavior indicative of wanton cruelty.” 730 ILCS 5/5-53.2(b)(2) (1994). As the Appellate Court of Illinois explained on Graham’s post-conviction
appeal, “[t]he general sentencing range for first degree murder was 20 to 60 years in prison …,
which was extendable to 100 years when one of the seven factors enumerated in section 5-53.2(b) … was present.” People v. Graham, No. 1-08-3651, 2011 WL 9669442, at *2 (Ill. App.
Jan. 19, 2011) (the slip opinion is reproduced in the record, Doc. 12-2 at 2-10, but all citations
will be to the version on Westlaw).
The transcript of the sentencing hearing makes clear that everybody—the prosecutor,
defense counsel, and the sentencing judge—assumed that Graham was eligible for an extendedterm sentence. Doc. 12-7 at 172-182. In concluding his presentation at the hearing, the
prosecutor stated: “I would ask that you sentence him to an extended term or something over the
maximum of sixty years.” Id. at 174. During rebuttal, defense counsel did not dispute that
Graham was eligible for an extended-term sentence; rather, counsel urged the court to exercise
its discretion to decline to impose such a sentence. Id. at 174-176.
In imposing an extended-term sentence of 75 years for first degree murder, the trial court
stated in relevant part:
All right, this Court having considered all the evidence that I heard in
the trial of this case, the same evidence that the jury heard and found you
guilty of on the offense of first degree murder and the two counts of armed
robbery of both victims. Having considered that evidence and having
considered all the information contained in this presentence investigation,
what I heard, the aggravation, what I heard in mitigation in this matter, Mr.
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Graham’s own statement made in open Court; the Court is prepared to impose
sentence.
In imposing sentence I am certainly considering the role played by this
Defendant and the robbery of these two individuals and the role that was
played in the robbery that resulted in the killing of one of those individuals.
Though Mr. Graham did not fire the shot that killed Mr. Clinton, it’s the same
result as if he had fired the shot. He played an intentional role in this incident.
… I’m also taking into consideration the criminal history of this Defendant.
The Defendant has been previously convicted and sentenced on burglary
charges, also possession of controlled substance charge, he’s also been found
delinquent on three separate occasions in Juvenile Court on various charges
involving possession of a stolen motor vehicle, burglary and other property
crimes. … In imposing sentence I’m also considering the particular acts
involved, there was also great injury to the surviving victim, the victim of the
armed robbery. … Mr. Graham, on the charge of first degree murder the Court
will impose an extended term sentence of seventy-five years in the Illinois
Department of Corrections.
Id. at 177-179. The sentencing court never expressly found that Graham was eligible for an
extended-term sentence. The court did not explicitly reference the recividism aggravating factor
under section 5-5-3.2(b)(7), though it did mention that Graham had previously been convicted
for burglary. Nor did the court explicitly reference the brutal-or-heinous aggravating factor
under section 5-5-3.2(b)(2), though it did mention “the particular acts involved”—and by “the
particular acts involved,” the trial court plainly was referring to the murder, as immediately
thereafter the court said that “there was also great injury to the surviving victim, the victim of the
armed robbery.” Id. at 179 (emphasis added). It is understandable that the sentencing court did
not expressly state that Graham was eligible for an extended-term sentence; the point was
undisputed, and judges need not make express rulings on uncontested matters.
Graham filed a motion to reduce sentence. Doc. 12-4 at 52-53. The motion argued,
among other things, that “[n]o basis was given for the extended term sentence.” Id. at 53. The
trial court summarily denied the motion in an oral ruling. Doc. 12-7 at 184.
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On direct appeal, Graham challenged the extended-term sentence. As in the trial court,
Graham did not dispute his eligibility for an extended-term sentence. Addressing the recidivism
and brutal-or-heinous aggravating factors, Graham’s brief stated: “An extended term sentence
may be imposed in situations where a defendant is convicted of murder[,] and has been convicted
of a Class 2 … crime within ten years or where the offense was brutal and heinous. 730 ILCS
5/5-5-3.2(b)(2)[,] (7).” Doc. 12-1 at 22. Graham argued that the murder was not “brutal or
heinous” under section 5-5-3.2(b)(2): “The instant case was not brutal and heinous, and
Graham’s 75-year extended term sentence cannot be justified on that basis. … This case does not
merit an extended term based on its factual circumstances.” Id. at 24-25. Graham conceded,
however, that his burglary conviction made him eligible for an extended-term sentence under the
recidivism factor in section 5-5-3.2(b)(7). Id. at 22 (“defendant’s criminal background makes
him technically eligible for an extended term”), 48 (conceding “that Graham was eligible for an
extended term sentence based on [his] Class two burglary conviction”). And then, noting
correctly that eligibility for an extended-term sentence does not require the court to actually
impose such a sentence, Graham argued that his extended-term sentence was an abuse of
discretion because he was not the actual shooter, because his prior convictions were for
nonviolent offenses, because he had expressed remorse, and for other reasons. Id. at 22-28.
The state appellate court affirmed. Id. at 1-10. The appellate court’s opinion reads, not
surprisingly, as if the parties had assumed that Graham was statutorily eligible for an extendedterm sentence. The matter is referenced only briefly at the end of the court’s opinion:
After considering all the relevant factors, the [sentencing] court determined
that defendant’s actions justified imposing an extended-term sentence. 730
ILCS 5/5-5-3.2(b) (West 1996). Defendant was sentenced to 75 years’
imprisonment, which was well within the statutory range of possible
sentences. … The trial court acted within the scope of its discretion when it
sentenced defendant to 75 years’ imprisonment.
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Id. at 10. As with the sentencing court’s explanation of Graham’s sentence, the fact that the
appellate court did not focus attention on Graham’s eligibility for an extended-term sentence is
not surprising, for Graham admitted his eligibility and argued only that the trial court had erred
in deciding to actually impose such a sentence.
Graham then filed a petition for leave to appeal (“PLA”) to the Supreme Court of Illinois.
Id. at 53-63. The PLA was denied on December 2, 1998. People v. Graham, 706 N.E.2d 499
(Ill. 1998) (Doc. 12-1 at 64). Graham did not petition the United States Supreme Court for a writ
of certiorari. Doc. 6 at 2.
Graham followed up with a pro se post-conviction petition, which again challenged the
extended-term sentence. Doc. 12-4 at 95-106. The state trial court summarily dismissed the
petition. Id. at 111. The state appellate court reversed and remanded for further proceedings.
People v. Graham, No. 1-00-1657 (Ill. App. Jun. 12, 2001) (Doc. 12-2 at 1).
On remand, and now represented by counsel, Graham filed a supplemental postconviction petition. Doc. 12-5 at 11-21. The supplemental petition argued that the sentencing
court lacked a lawful basis to impose an extended-term sentence, and also that Graham’s trial
counsel was ineffective in failing to argue that Graham was ineligible for an extended-term
sentence. Id. at 15-20. With respect to the first argument, the State responded that Graham was
eligible for an extended-term sentence under both the recidivism factor and the brutal-or-heinous
factor, and that “[t]he sentence was within the statutory range of possible sentences.” Id. at 4647 (citing 730 ILCS 5/5-5-3.2(b)(2), (7)). With respect to the second argument, the prosecutor
responded that trial counsel did in fact argue in the motion to reconsider sentence that there was
no basis for an extended-term sentence. Id. at 49. The post-conviction trial court denied
Graham’s challenge to his sentence on res judicata grounds. Id. at 63. And the court denied
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Graham’s ineffective assistance claim, reasoning that trial counsel filed a motion to reconsider
the sentence—which, as noted above, argued that “[n]o basis” was given for imposing an
extended-term sentence—and that “even had counsel immediately objected to the imposition of
an extended term, there is scant likelihood the objection would have changed petitioner’s
sentence.” Id. at 65.
On appeal, Graham argued that the extended-term sentence was unlawful because none
of the aggravating factors under 730 ILCS 5/5-5-3.2(b) were present and none had been found by
the sentencing court; the bulk of Graham’s two briefs maintained that this violated Illinois law,
and he summarily added at the end of both briefs that this violated due process as well. Doc. 122 at 11-50, 84-91. The appellate court affirmed. Agreeing with Graham that “the trial court did
not state a particular eligibility factor for the imposition of the extended term,” the appellate
court nonetheless held that “the lack of a specific finding by the trial court did not render an
extended term sentence void where ‘we can ascertain from the comments of the court that it did
find an extended term sentence appropriate for defendant.’” Graham, 2011 WL 9669442, at *2
(quoting People v. Sterling, 828 N.E.2d 1264, 1282 (Ill. App. 2005)). On that point, the court
ruled that “[t]he record here clearly establishes such intent [on the part of the sentencing judge]
where, at sentencing, the trial court specifically stated that ‘on the charge of first degree murder,
the court will impose an extended term sentence’ of 75 years in prison.” Ibid.
The appellate court then noted that the parties’ briefs on post-conviction appeal agreed
“that the only statutory factor relevant to the imposition of an extended term sentence here
authorizes such term where defendant’s commission of a felony is ‘accompanied by
exceptionally brutal or heinous behavior indicative of wanton cruelty.’” Id. at *3. With respect
to the brutal-or-heinous factor, the court observed: “At the time of defendant’s conviction and
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sentence, the trial court had the discretion to determine whether a crime was brutal or heinous
and indicative of wanton cruelty. It is within the trial court’s discretion to determine what
constitutes exceptionally brutal [or] heinous behavior indicative of wanton cruelty for the
purpose of imposing an extended term sentence ….” Ibid. (internal quotation marks omitted,
alteration in original). The appellate court concluded:
Here, the record is replete with references to the applicability of an
extended term, as argued by the State, as conceded by defense counsel at trial
and as expressly stated by the court at sentencing, where the court stated that
“on the charge of first degree murder, the court will impose an extended term
sentence” of 75 years in prison. Defendant did not seek clarification of the
specific reason or reasons for the extended term at his sentencing hearing.
Although defendant apparently filed a motion to reduce his sentence, that
motion is not included in the record on appeal, and the report of proceedings
is not illuminative on this point because defense counsel waived argument and
stood on the contents of the motion.
Furthermore, in challenging his sentence on direct appeal, we
specifically held:
“After considering all the relevant factors, the [trial] court determined
that defendant’s actions justified imposing an extended term sentence
[citing to section 5-5-3.2(b)]. Defendant was sentenced to 75 years’
imprisonment, which was well within the statutory range of possible
sentences [citing section 5-8-2, under which an extended term sentence
of between 60 and 100 years can be imposed]. It is not our function to
serve as a sentencing court, and we will not substitute our judgment
for that of the trial court merely because a different sentence could
have been imposed. [Citation.] The trial court acted within the scope
of its discretion when it sentenced defendant to 75 years’
imprisonment.” Graham, No. 1-97-0417, at 10.
Defendant pulled Porter from a car, demanded money, and ordered her
to lie face down. Defendant was legally accountable for the deeds of his cooffender, Capers, who shot Pittman in the neck, killing him, and defendant’s
failure to fire the fatal shot is of no import because a defendant convicted on
an accountability theory can receive an extended term sentence under section
5-5-3.2(b)(2) for the brutal or heinous behavior of his co-offender. See
People v. Rodriguez, 229 Ill.2d 285, 292-93 (2008). Capers shot Pittman in
the neck at close range, leaving him to die in the street while his pregnant
companion watched.
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In light of this record and the relevant law, defendant’s sentence was
statutorily authorized and does not fall within the definition of a void
judgment. Accordingly, the grant of the State’s motion to dismiss his postconviction petition is affirmed.
Id. at *3-4 (alterations in original). To summarize, the appellate court held that the sentencing
court did not explicitly set forth the aggravating factor(s) that justified Graham’s extended-term
sentence, that Illinois law does not require a sentencing court to do so where the record makes
clear that the court intended to impose an extended-term sentence, that the record made clear that
the sentencing court in Graham’s case intended to impose an extended-term sentence, and that
the sentencing court, albeit implicitly, had justified an extended-term sentence under section 5-53.2(b)(2) on the ground that the murder was brutal or heinous.
Graham filed a pro se PLA. Doc. 12-3 at 8-25. He argued, among other things, that the
post-conviction appellate court made a finding of fact that the murder was “brutal or heinous,”
and that by making that finding of fact, the appellate court violated Apprendi v. New Jersey, 530
U.S. 466 (2000). In support, Graham stated:
[T]he Appellate Court disregarded the ruling in Apprendi and the language of
the statute as it exist[ed] in 2011, and assumed the role of the trier of the fact.
Petitioner is not asking this court to apply the ruling in Apprendi retroactively.
However the Appellate Court made such a finding of fact 11 years after the
Apprendi ruling. And the Appellate Court’s finding of fact is what
substantiates the imposi[t]ion of an extended term sentence, and it replaces the
absence of such a finding of fact.
Doc. 12-3 at 24. The Supreme Court of Illinois denied the PLA. People v. Graham, 955 N.E.2d
475 (Ill. 2011) (Doc. 12-3 at 26). This petition for a writ of habeas corpus followed.
Discussion
Graham seeks habeas relief on four grounds. Doc. 6 at 5-8. Although the Warden
contends that Graham procedurally defaulted all four grounds, Doc. 11 at 4, the court will
address each ground on the merits. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of
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habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”).
I.
State Law Claims
For his first, second, and fourth grounds, Graham argues: (1) that the sentencing court
abused its discretion by considering the “great injury” to Potter in deciding whether to impose an
extended-term sentence; (2) that the sentencing court imposed an extended-term sentence
without “making the specific finding of fact that one of the aggravating factors listed in 730
ILCS 5/5-5-3.2(b)”; and (4) that the murder was not brutal or heinous within the meaning of the
brutal-or-heinous aggravating factor. Doc. 6 at 5-6, 8. All three grounds assert violations of the
Illinois sentencing statute, and therefore are not cognizable on federal habeas review. See 28
U.S.C. § 2254(a) (“a district court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States”) (emphasis
added); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions”); Dellinger v. Bowen, 301
F.3d 758, 764 (7th Cir. 2002) (“an error in … the application of state sentencing rules … does
not present a cognizable claim for federal habeas relief”).
Graham does briefly invoke the due process and equal protection protections of the
Fourteenth Amendment in pressing the second and fourth grounds. Doc. 6 at 5-6. A claim that
the state courts misapplied state law is cognizable on federal habeas review if the “petition draws
enough of a connection between [the petitioner’s] right to due process [under the United States
Constitution] and the [state courts’] (alleged) evidentiary and instructional errors.” Perruquet v.
Briley, 390 F.3d 505, 512 (7th Cir. 2004). Graham’s petition falls well short of that standard.
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Graham merely asserts, in conclusory fashion, that the state courts’ violation of Illinois
sentencing law also violated his federal constitutional rights. Unlike the petition in Perruquet—
which “articulated the theory of self-defense that [the petitioner] wished to pursue; … described
the evidence (both excluded and admitted) that supported that theory; and … argued that
preventing [the petitioner] from pursuing the theory of self-defense likely resulted in the
conviction of an innocent person,” and which therefore made “the basic rationale of [the
petitioner’s] due process argument … readily discernible,” ibid.—Graham makes no effort, other
than uttering the words “due process” and “equal protection,” to actually connect the state
courts’ alleged departures from state law to the federal due process and equal protection
guarantees. Doc. 6 at 5-8; see Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995) (“‘Due
process’ is such a ductile concept that phrase-dropping is the equivalent of no argument at all. A
lawyer need not develop a constitutional argument at length, but he must make one; the words
‘due process’ are not an argument.”) (citation omitted). He therefore has failed to articulate a
cognizable federal claim on habeas review. See Dellinger, 301 F.3d at 764 (holding that the
petitioner did not present a cognizable habeas claim where he argued that the state courts
violated due process and equal protection by erroneously finding that he had inflicted “severe
bodily injury” within the meaning of the Illinois sentencing statute); see also Schweiner v.
Foster, 493 F. App’x 750, 751-52 (7th Cir. 2012) (“Schweiner’s argument casts a claimed
violation of state law—not cognizable on federal habeas review—as a federal due-process
violation. Under the Due Process Clause, the prosecution must prove every element of a crime
beyond a reasonable doubt, but the elements of the crime are defined by state law. Here, the
state appellate court held that the supplemental jury instruction was a correct statement of
Wisconsin law based on the facts of Schweiner’s case. That conclusion ends our inquiry.”);
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Curtis v. Montgomery, 552 F.3d 578, 582 (7th Cir. 2009) (“We agree with the State that Curtis is
impermissibly attempting to use a petition for a writ of habeas corpus to press his preferred
interpretation of Illinois law. We may not review state-court interpretations of state law.”).
II.
Apprendi Claim
Graham’s one true federal claim is that the post-conviction appellate court violated
Apprendi by making a factual finding that the murder was brutal or heinous as a predicate to
ruling that an extended-term sentence was justified under section 5-5-3.2(b)(2). Doc. 6 at 6-7.
Apprendi holds that “[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490. Accordingly, if the post-conviction appellate
court indeed made a “fresh” factual finding that the murder was brutal or heinous, Apprendi
would come into play. But if the post-conviction appellate court simply held that the sentencing
court had predicated the extended-term sentence on its own brutal-or-heinous finding, there
would be no viable Apprendi claim. (As explained below, there would be an Apprendi violation,
but any federal habeas claim based on that violation would be Teague-barred.)
The post-conviction appellate court’s opinion, particularly considered against the
backdrop of the state court record as a whole, makes clear that the appellate court did not make
its own brutal-or-heinous finding, but rather held that the sentencing court had made an implicit
brutal-or-heinous finding in imposing an extended-term sentence. Recall the appellate court’s
observation that: “At the time of defendant’s conviction and sentence, the trial court had the
discretion to determine whether a crime was brutal or heinous and indicative of wanton cruelty.
It is within the trial court’s discretion to determine what constitutes exceptionally brutal [or]
heinous behavior indicative of wanton cruelty for the purpose of imposing an extended term
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sentence ….” 2011 WL 9669442, at *3 (internal quotation marks omitted, alteration in original).
This passage makes sense only if the appellate court concluded that the sentencing court had
made a brutal-or-heinous finding at sentencing. If the appellate court did not believe that the
sentencing court had made a brutal-or-heinous finding, then it would have had no reason to
reference the sentencing court’s discretion to make such a finding.
The appellate court acted reasonably in concluding that the sentencing court had made an
implicit brutal-or-heinous finding. That the sentencing court made that implicit finding is
suggested by the court’s reference to “the particular acts involved” in the murder. Doc. 12-7 at
179. That reference is admittedly oblique, but Graham’s eligibility for an extended-term
sentence was undisputed at sentencing, so the sentencing court had no need to dwell on or even
explicitly mention the issue. The proposition that the sentencing court made an implicit brutalor-heinous finding gains further support from Graham’s brief on direct appeal, which addressed
the section 5-5-3.2(b)(2) brutal-or-heinous factor and argued at some length that Graham’s
involvement in the murder did not qualify as brutal or heinous. Doc. 12-1 at 24-26. Why would
Graham address the brutal-or-heinous factor on appeal, if not for his understanding that the
sentencing court had implicitly relied on that factor in imposing an extended-term sentence?
True, Graham conceded that his burglary conviction made him eligible under the section 5-53.2(b)(7) recidivism factor for an extended-term sentence, but Graham’s argument that the
sentencing court abused its discretion in imposing an extended-term sentence would have been
much stronger had the appellate court on direct appeal concluded that only one aggravating
factor (recidivism) was present, not two (recidivism and brutal-or-heinous).
In ruling that the post-conviction appellate court reasonably concluded that the
sentencing court had made an implicit finding that the murder was brutal or heinous, this court is
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mindful of the teaching of Taylor v. Grounds, 721 F.3d 809 (7th Cir. 2013), on the subject of
implicit state court findings. Taylor was a habeas case in which the Supreme Court of Illinois, in
rejecting the petitioner’s Sixth Amendment conflict-of-counsel claim, held that the postconviction trial court had implicitly found (without expressly saying) that the petitioner’s trial
counsel had credibly testified that the conflict did not adversely affect his representation of the
petitioner. Id. at 816-17. The Seventh Circuit held that the state supreme court unreasonably
concluded that the state trial court had rested its rejection of the petitioner’s claim upon such a
credibility finding. Id. at 822. In so holding, the Seventh Circuit explained the circumstances
under which the state trial court can and cannot be assumed to have made an implied credibility
finding. “When competing testimony is presented on a single issue decided in the government’s
favor, a federal habeas court can imply a credibility finding in favor of the government from the
state court’s decision.” Id. at 822 n.3 (citing LaVallee v. Delle Rose, 410 U.S. 690, 690-94
(1973) (per curiam)). By contrast, it cannot be assumed that the state trial court made an implied
credibility finding where “the resolution of [the petitioner’s] claim required resolution of two
issues that were both contested at the [state] trial court level.” Ibid.
The post-conviction appellate court’s conclusion in this case that the sentencing court had
made an implicit brutal-or-heinous finding falls on the permissible side of the line. By contrast
to the circumstances in Taylor, the pertinent issue faced by the sentencing court—whether
Graham was eligible for an extended-term sentence—was not even disputed by Graham. It is for
that reason that the sentencing court had no reason to explicitly find that Graham was so eligible;
the sentencing court instead focused on the only disputed issue, whether the circumstances
warranted a non-extended sentence despite Graham’s eligibility for an extended-term sentence.
The fact that the sentencing court focused on that issue suggests that it had already determined,
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along with the parties, that Graham was eligible for an extended-term sentence. The postconviction appellate court’s conclusion to that effect is particularly reasonable given what the
court accurately described as a record “replete with references to the applicability of an extended
term.” 2011 WL 9669442, at *3. Again, the reasonableness of the appellate court’s conclusion
is confirmed by the fact that Graham came to the same conclusion on direct appeal, where he
addressed the two pertinent aggravating factors, recidivism and brutal-or-heinous, and argued
that he was eligible for an extended-term sentence under the first but not the second, which he
would have done only if he understood the sentencing court to have relied on both factors in
finding him eligible.
To say that the post-conviction appellate court’s characterization of the sentencing
court’s oral sentencing ruling is reasonable is not to suggest that it is beyond dispute or even that
it is the most persuasive characterization. But reasonableness is the only hurdle that must be
cleared on habeas review. As the Seventh Circuit explained in Taylor: “For purposes of
collateral review, we must defer to the Illinois Supreme Court’s characterization of what the
postconviction trial court found unless the petitioner presents clear and convincing evidence to
overcome that presumption.” 721 F.3d at 821, citing 28 U.S.C. § 2254(e)(1); Parker v. Dugger,
498 U.S. 308, 320 (1991) (holding that a state appellate court’s “determination of what the trial
judge found is an issue of historical fact,” to which “a federal court on habeas review must give
deference”); Wright v. Walls, 288 F.3d 937, 944 (7th Cir. 2002) (“a reviewing court’s
characterization of what the trial judge found is one of historical fact”). For the reasons given
above, Graham has not established by clear and convincing evidence that the post-conviction
appellate court was wrong in concluding that the sentencing court relied on the brutal-or-heinous
factor in finding him eligible for an extended-term sentence.
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It bears mention that the post-conviction appellate court did not conclude that the
sentencing court had implicitly found Graham eligible for an extended-term sentence under the
recidivism factor, section 5-5-3.2(b)(7). As the appellate court explained, the parties agreed on
post-conviction appellate review “that the only statutory factor relevant to the imposition of an
extended term sentence here authorizes such term where defendant’s commission of a felony is
‘accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.’” 2011
WL 9669442, at *3. Because Graham had expressly conceded on direct appeal his eligibility for
an extended-term sentence under the recidivism factor, it is unclear why the State dropped its
reliance on that factor. Perhaps the State was convinced by Graham’s argument in his initial
post-conviction appellate brief (Doc. 12-2 at 27-28) that Graham’s burglary conviction did not,
in fact, satisfy section 5-5-3.2(b)(7).
Even if the burglary conviction did not make Graham eligible under the recidivism factor
for an extended-term sentence, the sentencing court’s error in relying upon that factor would
have been an error of state law. Accordingly, if the post-conviction appellate court had
concluded that the sentencing court relied on the recidivism factor as well as the brutal-orheinous factor in finding Graham eligible for an extended-term sentence, Graham’s Apprendi
claim would fail—regardless of the brutal-or-heinous factor—because “an error in … the
application of state sentencing rules … does not present a cognizable claim for federal habeas
relief,” Dellinger, 301 F.3d at 764, and because recidivism findings fall outside Apprendi’s scope
altogether. See Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) (holding that the
fact of a prior conviction is a sentencing factor that may be found by the sentencing judge and
that need not be found by a jury beyond a reasonable doubt); United States v. Elliott, 703 F.3d
378, 381 (7th Cir. 2012) (observing that “Almendarez-Torres has remained good law even as the
16
[Supreme] Court in later decisions has recognized a defendant’s right to a jury finding on other
factors that expose the defendant to a longer sentence” and noting that Apprendi “expressly cited
the fact of a prior conviction as an exception to the rule it stated”); Calloway v. Montgomery, 512
F.3d 940, 945 (7th Cir. 2008) (same). But the State did not press that argument on state postconviction review, the post-conviction appellate court did not uphold Graham’s sentence on that
ground, and the Warden does not rely on the recidivism factor here, so the court will not deny
habeas relief on that ground. See Hill v. Werlinger, 695 F.3d 644, 647 (7th Cir. 2012); Canaan
v. McBride, 395 F.3d 376, 381-82 (7th Cir. 2005).
One final issue warrants discussion. The court parenthetically noted above that the
sentencing court’s imposition of an extended-term sentence based on its own brutal-or-heinous
finding violated Apprendi—doubly so, as the finding was made neither by a jury nor under the
reasonable doubt standard—but that any federal habeas claim based on that violation would be
Teague-barred. The Teague non-retroactivity rule holds that “new constitutional rules of
criminal procedure will not be applicable to those cases which have become final before the new
rules are announced.” Teague v. Lane, 489 U.S. 288, 310 (1989); see also Chaidez v. United
States, 655 F.3d 684, 688-89 (7th Cir. 2011). The Seventh Circuit has ruled that Apprendi is
“not retroactive on collateral review,” and therefore that “Apprendi … does not disturb sentences
that became final before June 26, 2000, the date of its release.” Curtis v. United States, 294 F.3d
841, 842, 844 (7th Cir. 2002).
Graham’s conviction became final before June 26, 2000. “A state conviction and
sentence become final for purposes of retroactivity analysis when the availability of direct appeal
to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has
elapsed or a timely filed petition has been finally denied.” Caspari v. Bohlen, 510 U.S. 383, 390
17
(1994). The Supreme Court of Illinois denied Graham’s PLA on direct appeal on December 2,
1998. Because Graham did not file a certiorari petition with the United States Supreme Court,
his conviction and sentence became final when the 90-day deadline for filing a certiorari petition
elapsed in early March 1999, more than a year before Apprendi was issued. Accordingly,
Teague would bar any Apprendi claim directed at the sentencing court’s imposition of the
extended-term sentence based upon its own brutal-or-heinous finding. *
Conclusion
Because all of Graham’s claims are without merit, his petition for a writ of habeas corpus
is denied. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district court
“must issue or deny a certificate of appealability [(‘COA’)] when it enters a final order adverse
to the applicant.” The applicable standard is as follows:
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial
showing of the denial of a constitutional right, a demonstration that ... includes
showing that reasonable jurists could debate whether (or, for that matter, agree
*
Contrary to the Warden’s submission, Doc. 15 at 1-2, 6-7, Teague does not bar Graham’s
claim (which this court has rejected on the merits) that the sentencing court did not make an
implicit brutal-or-heinous finding and that the post-conviction appellate court violated Apprendi
by making its own brutal-or-heinous finding. Although Graham’s conviction became final in
March 1999, if the post-conviction appellate court violated Apprendi by making a new factual
finding in 2011, eleven years after Apprendi was issued, then applying Apprendi to that violation
would not violate Teague. Also unpersuasive is the Warden’s argument that Graham
procedurally defaulted his Apprendi claim by not presenting it on “one complete round of state
court review.” Doc. 11 at 10-11. The Apprendi claim arose from the post-conviction appellate
court’s opinion, and Graham raised that claim in the state supreme court in his post-conviction
PLA. Doc. 12-3 at 12, 24-25. The Warden does not indicate what else Graham could possibly
have done—file a second post-conviction petition in the state trial court asking it to overturn the
appellate court’s decision?—to preserve his Apprendi claim. Indeed, Illinois law allows an
appeal from the state appellate court to the state supreme court where, as Graham alleges here, “a
question under the Constitution of the United States arises for the first time in and as a result of
the action of the Appellate Court.” Ill. Sup. Ct. R. 317. Under these circumstances, there is no
procedural default. See Cottenham v. Jamrog, 248 F. App’x 625, 634 (6th Cir. 2007) (rejecting
the State’s “one complete round” argument where “the Michigan Supreme Court was the first
court in which [the petitioner] could have raised these issues, as the constitutional violation arose
for the first time in the [state] court of appeals, not the trial court”).
18
that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted); see also
Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011); Davis v. Borgen, 349 F.3d 1027, 1029 (7th
Cir. 2003).
The court’s denial of Graham’s state law claims rely on settled precedent. The
application of that precedent to Graham’s state law claims, and the court’s conclusion that
Graham cannot federalize those claims merely by calling them due process or equal protection
claims, do not present close or difficult questions, so a COA will not issue on the state court
claims. A COA will issue on the Apprendi claim, not because the Apprendi issues themselves
are difficult, but because reasonable jurists might disagree with: (1) this court’s holding that the
post-conviction appellate court reasonably concluded that the sentencing court had implicitly
relied on the brutal-or-heinous factor in finding Graham eligible for an extended-term sentence;
or (2) this court’s holding, logically anterior to the holding just mentioned, that the postconviction appellate court (a) actually concluded that the sentencing court had made an implicit
brutal-or-heinous finding and (b) did not make its own “fresh” brutal-or-heinous finding in 2011
on post-conviction review. Thus, a COA is granted on this question: “Whether the Appellate
Court of Illinois on post-conviction review violated the principles of Apprendi v. New Jersey,
530 U.S. 466 (2000), or Taylor v. Grounds, 721 F.3d 809 (7th Cir. 2013), in the course of
rejecting Graham’s claim that the sentencing court failed to articulate a ground for finding him
eligible for an extended-term sentence.”
November 13, 2013
United States District Judge
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